My Lords, I have four amendments in this group. I am looking more at the commercial interest side of things, partly because “information” is a very broad word that can mean all kinds of things. My Amendment 29 adds to the end of Clause 14 that information sharing
“must respect rights of ownership and privacy, including with a view to compensation in respect of any commercial rights”.
I will talk more on compensation in connection with later amendments as well, but there is a significant issue here.
Under Clause 14, authorisation requirements may state that there has to be information sharing with the Secretary of State, public authorities and private businesses. Clause 14(4) says that the purpose of the shared information must be disclosed, which is fair enough as far as it goes, but says nothing about privacy or commercial rights. Further, the information may not belong to the body being authorised. It may belong to individuals. Even in an anonymised state, it may belong to others than the authorised entity. I accept that there may be instances where sharing is needed—accidents and failures come immediately to mind—but there will still need to be ways to make sure that neither individual nor commercial rights are undermined.
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Others are far more expert than I on the personal data side, but I have some claim to understanding intellectual property rights, as my profession was as a patent attorney. Here, and elsewhere in the Bill, there seems to be no recognition of these rights, of the multiple entities in the chain that may hold them or of the disastrous effect that disclosures in these terms may have, particularly in forcing smaller companies out of their only protections and out of business. If their information, commercial or otherwise, must be disclosed to other bodies, they will end up undermined, which will leave us with only the megabusinesses that have the power and size to withstand such conditions.
What specific attention has been given to intellectual property rights? I am happy to discuss this with the Minister or officials if that would be helpful. Fundamentally, is there an intention to set aside such rights and, if so, under what conditions? Meanwhile, my suggestion is to put in a reference to observation of commercial and privacy rights.
Amendments 34 and 42 are also relevant to intellectual property. They would insert a provision that
“both fair and reasonable compensation”
for commercial data
“and protection of personal data are provided”.
Amendment 34 would put this at the end of Clause 42, on protection of information, and Amendment 42 would place it at the end of Clause 88, on the collection, sharing and protection of data. The final subsections of both clauses state that provisions made are
“not to be taken to authorise disclosure or use that would be liable to harm the commercial interests of any person, except to the extent that”
the provision otherwise applies or
“the person disclosing or using the information reasonably considers such disclosure or use necessary in view of the purpose of the regulations”.
This provision is useless. It offers commercial and personal protection, but that protection can be taken away by either the provision itself or a person who wants to disclose or use the information. That seems extraordinary. This drives a coach and horses through personal and intellectual property rights.
Whereas in my previous amendment I was concerned about what might be confidential information, here I am also concerned about flouting statutory patent or copyright rights. Data may be commercially confidential as well as valuable, and the means of generating some information could well be patented. Software will have copyright. Setting that aside is astonishing, and it reads as though all those things are possible under these terms. Is it a whole new system of compulsory licensing, setting aside fair commercial reward? The Commons Transport Committee report suggested that there might be occasions when commercial interests had to be overridden, but this was a suggestion from one witness in the context of cybersecurity. I cannot envisage that a free-for-all on data was intended, as that would surely increase vulnerability and help hackers.
Have the Government decided to take that view and, if so, to what extent? Can the Minister please explain? If such a position is being suggested, it needs much tighter drafting as to circumstance and compensation. After all, when we had compulsory licensing provisions for patents, there was reasonable compensation. Those compulsory licence provisions proved both difficult and costly to implement, and ultimately were removed in the Patents Act 1977 because, among other reasons, they were against TRIPS. There may be a recent resurgence of interest, given India’s actions, but are we really joining in the repudiation of WTO positions?
Wary of that history, I think these provisions are unsustainable, as they read to me, and at the very least there should be a provision for fair compensation regarding commercial rights and, of course, protection of personal data. That is what my exploratory amendments suggest, but even compensation is tricky under international conventions, unless there is a right to refuse.
I stress again that these issues are particularly important for smaller companies and that the information that is sought may well come from such a source, as often there are consortiums surrounding how the vehicle is going to be produced in its final version. This is especially the case when looking at software and the connected vehicle aspects. Their entire protection of a
small company may be based on commercial information and patent rights, and they will be destroyed if those are set aside.
Finally, my Amendment 31 relates to telling people when information that they have given in an inquiry can be used for other purposes. This amendment inserts at the end of the provision that says:
“The Secretary of State may use the information for any of the investigative purposes in relation to any regulated body, irrespective of the purpose for which it was initially obtained”.
It is another provision that leaves me somewhat queasy, but for now I am suggesting that notice has to be given to whoever gave the information. It may also be reasonable to allow an objection mechanism. The looseness of this provision, allowing use of information, also seems inconsistent with provisions elsewhere—for example, relating to inspections, where information is more closely controlled—and it also seems against judicial provisions, which surely should indicate guiding principles. I am not sure whether I have always correctly interpreted what is written from the Government’s point of view, but in interpreting what is written on the page as I see it, I think there are some substantial problems. When it comes to information being swapped from one inquiry to another, normally if you have given evidence, certainly in a court, it cannot just be then swapped and used in something else. When there are inquiries, individuals may give away information believing that it is for a narrow and specific purpose. I do not believe, if there was any confidentiality or other things around it, they have given permission for it to be swapped elsewhere.
I hope the Minister can look at my amendments and what is in the Bill, and, as well as a response now, maybe come back with a more considered response on whether there are things that can be amended along the lines that I suggest.